Service Rules

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. dismissed an appeal seeking directions for an appointment based on the subsequent waiting list when the selected candidate and the waitlisted candidate did not report.

The petitioner had offered his candidature for selection against the post of Accounts Assistant (ST category) by the Jammu and Kashmir Services Selection Board. The board, at the culmination of the selection process, forwarded the selection list containing the name of a lone candidate along with a waiting list, also containing the name of only one candidate. While the Department had yet to act on the selection list so forwarded to it by the Board, the petitioner made a representation addressed to the Directorate General, Accounts and Treasuries, bringing it to his notice that the selected candidate and the candidate figuring in the waiting list had tendered affidavits stating that they did not intend to join, and requesting him to direct the concerned authorities to process his case for appointment in accordance with norms as his candidature was on top in the subsequent waiting list. The request was rejected by the board as there were no rules for appointment of a candidate whose name is neither in the selection list and nor in the waiting list.

The petitioner feeling aggrieved by the above rule moved to the Court.

The issue for determination was: whether a candidate in a selection process securing a merit position below the waitlisted candidate can lay a claim for selection and appointment against the advertised post in the event the waitlisted candidate does not join against the post when the appointment is offered to him on account of non-joining of the selected candidate

Learned counsel for the petitioner Nissar Ahmad, submitted that since the petitioner’s name was there in the merit list after the waitlisted candidate, who did not join against the post, a right has accrued to him for being appointed against the post, but the respondents were unjustifiably denying him such right. It was also averred that the respondent had not shown any legal infirmity in denying appointment order in favour of the petitioner.

Learned counsels for the respondent D.C Raina and Mir Suhail, submitted before the Court that there was no rule to provide a supplementary waiting list and this position was clarified by the Board earlier in terms of communication. It was further stated in the reply that since the petitioner’s name did not figure either in the select list or the waiting list he had no right or locus to claim selection and appointment against the post. Furthermore, Rule 14 of Jammu and Kashmir Civil Service Decentralization and Recruitment Rules Act, 2010 (2010 Rules) which governs the selection process did not provide any provisions for making an appointment from the subsequent waiting lists. Thus, they requested the Court to dismiss the petition.

The Court observed that since the 2010 Rules was the governing statute for the appointment to the concerned post and it did not provide any provision regarding making of a subsequent waiting list for the purpose of filling a seat, the same cannot be de done as it would be violating the provisions of the statute. The Court also relied on the Judgment given in the case of Prem Singh v. Haryana SEB,(1996) 4 SCC 319 in which Supreme Court very clearly observed that appointment on more than the advertised seats cannot be allowed as the governing provision laid no rules regarding that. The Court, thus, dismissed the petition.[Liyakat Hussain Baniya v. State of Jammu and Kashmir, 2019 SCC OnLine J&K 442, decided on 17-05-2019]

Uttaranchal High Court: The Bench of Ramesh Ranganathan, CJ. and N.S. Dhanik, J. allowed a special appeal by State of Uttarakhand, preferred against the order of learned Single Judge, setting aside the same impugned order.

Facts, to the limited extent necessary, are, the respondent was Class IV employee in Inter Rural Road Construction Scheme, started by Government of Uttar Pradesh under the supervision of Cane and Sugar Commissioner. The State of Uttar Pradesh bifurcated in Uttarakhand formerly known as Uttaranchal in 2000, and the respondent opted to be located in Uttarakhand for his service till the date of superannuation. The respondent had contended earlier that he was paid all the retiral benefits but a pension. The Government denied his pension stating that such benefits are applicable to the ‘government servants’ only and being in the service of Road Construction Scheme he is not deemed to be a ‘government servant’.

The learned Single Judge, relied on the Supreme Court judgment and granted the order in favor of the respondent earlier, he further stated that judgment of the Supreme Court was binding and there is no substance in the contentions of State. Supreme Court, in Vinod Kumar Goel v. State of Uttrakhand, (Civil Appeal No. 2511 of 2004 and 227 of 2014, Order dated 10-01-2004) where the matter in issue was exactly same, held, that “the Supreme Court has never rejected the contention earlier, that aggrieved individual was not a ‘government servant’ when working under the Cane Commissioner. Further, it was held by Court that, “Rules of the State were applicable to the appellant for the purpose of superannuation and other consequential benefits; the earlier decision was binding on both the parties; and the respondents could not deny the retiral benefits, including pension, to the appellant.”

Aggrieved by the order of learned Single Judge, the State including the Commissioner, filed the appeal to the Court. The contentions of the appellant were that, the alleged proceedings before the Commissioner were not challenged by the respondent and the order passed in 1997 was the basis of the judgment of the Supreme Court. Hence, the order of the Commissioner in 2006 is valid and respondent’s inaction was not considered by the Single Judge while adjudication. The Commissioner has earlier observed that, there were no separate rules for the employees and officers working in the headquarters, districts, and areas under the Scheme, due to which various kinds of difficulties were arising in taking decisions in establishment related cases, the employees and officers of the Scheme would be covered by the Service Rules, as are applicable from time to time, in equivalent posts of the Cane Development Department. The Commissioner clarified that any other provision, and order prevailing in this regard, will not qualify any employee, employed under the Scheme, as a Government employee.

The appellant emphasized on the order of the Commissioner in 2006, which was relevant at the time when the respondent’s claim was decided and eventually ignored by the respondent, it was the only order which was effective as on that date, and was effective on the date of superannuation therefore, the claim of respondent was liable to be dismissed and rejected by the learned Single Judge. They further contended that the ruling of the Supreme Court was also not in conformity with the order passed by the Commissioner in 2006 but that of in 1997.

High Court, based on the aforementioned contentions of the appellant, set aside the order passed by the learned Single Judge in favor of respondent and issued a direction that it shall examine, the question whether, in view of the subsequent order passed by the Commissioner in 2006, the orders of the Supreme Court, based on the earlier order of the Commissioner in 1997, would apply to the case of the respondent.[State of Uttrakhand v. Gopal Singh Bisht, 2019 SCC OnLine Utt 340, Order dated 01-05-2019]

Allahabad High Court: Deciding upon the issue of rejection of the candidature of the appellants to the posts of Constables and other equivalent posts in Uttar Pradesh Police on medical grounds, the Court held that Appendix 5(3)(d) to Rule 15(f) of the U.P. Police Constables and Head Constables Services Rules, 2008 is unreasonable and arbitrary as it does not give sufficient time to file an appeal and secondly, in the absence of reasoned order any appeal is an empty formality, thus, arbitrary and violates Article 14 of the Constitution.

Challenging the vires of the provisions of the 2008 Rules, the petitioners contended that non-furnishing of the reason for rejection was totally illegal and arbitrary. The impugned provision provided that:

“(d) Any candidate not satisfied by his medical examination, shall file an appeal on the day of examination itself. No appeal with respect to the medical examination shall be entertained if the candidate fails to appeal on the day of his medical examination and announcement of the result of the same. The appeal should be disposed of by the medical Board constituted for the purpose within one month of the appeal being filed.”

Perusing the record, the Court observed that in all the cases the candidates’ appeals had been rejected in a mechanical manner without assigning any reason, and the order of the Appellate Medical Board appeared to be a rubber stamp decision, which did not inspire confidence. As the 2008 Rules provided only an appeal, there was no provision of revision or review. Hence in the absence of a reason, the appeal is illusory inasmuch as the candidate does not know the ground on which it was rejected. The Court observed “that assignment of reasons is imperative in nature. The judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. It is a trite law that even if a statute is silent and it does not provide the principles of natural justice or are not embodied in rule, if by an order a statutory authority affects a citizen with civil or evil consequences, it must meet the test of reasonableness. Civil consequences cover everything that affects a citizen’s civil life.” The Court further observed that is trite that in the realm of diagnosis and treatment there is a scope for genuine difference of opinion. Hence a brief description of the deficiency with a brief reason is necessary to eschew the arbitrariness.

The Court summarised its directions as follows:

The provision of Appendix 5(3)(d) to Rule 15 of the Rules, 2008, “on the day of the examination itself. No appeal with respect to the medical examination shall be entertained if the candidate fails to appeal on the day of his medical examination and announcement of the result of the same” is struck down as arbitrary and ultra vires.

A fresh Appellate Medical Board shall be constituted within two months, as directed above. A candidate, who is aggrieved by the order of the Medical Board, may file an appeal to the Appellate Medical Board within two weeks. The freshly constituted Appellate Medical Board shall continue in future recruitments also until appropriate amendment is made in the Rules, 2008;

In the existing Appellate Medical Board at the Divisional level one doctor shall be of the rank of Professor of a Medical College nominated by the Principal of the concerned college.

The petitioners’ appeals shall be considered by the newly constituted Appellate Medical Board.

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